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Institution of Legal Proceedings Against Certain Organs of State

VIEWS: 65 PAGES: 8

									Government Gazette
       REPUBLIC OF SOUTH AFRICA


    Vol. 449    Cape Town       28     November   2002   No. 24112



               THE PRESIDENCY
   No. 1497               28 November 2002
   It is hereby notified that the President has
   assented to the following Act, which is
   hereby       published       for     general
   information:–
   No. 40 of 2002: Institution of Legal
   Proceedings against certain Organs of
   State Act, 2002.




 AIDS HELPLINE: 0800-123-22 Prevention is the cure
No.24112 2                                           GOVERNMENT GAZETTE, 28
                                                                 2002
                                                                 NOVEMBER

         Act No. 40,2002       INSTITUTION OF LEGAL
                                                  PROCEEDINGSAGAINST
                                    CERTAIN ORGANS OF STATE ACT, 2002

         GENERAL EXPLANATORY NOTE:

         [                 ]         in
                                    bold
                                  Words          type in square brackets indicate omissions from
                                  existing enactments.
                                  Words          with
                                        underlined          a solid line indicate insertions in
                                  existing enactments.




                                  (English text signed by the President.)
                                    (Assented to 24 November 2002.)




                                               ACT
                                                                 of prescription of debts
         To regulate the prescription and to harmonise the periods
           which
         for    certain organs                         to
                                     of stateare liable; make          for
                                                              provision notice
                                                      of legal proceedings against certain
         requirements in connection with the institution
                                  of
         organs of state in respect the recoveryof debt; to repeal or amend certain laws;
         and to provide for matters connected therewith.

                                              PREAMBLE

                                                      of
         RECOGNISING THAT certain provisions existing laws providefor-
             * different notice periods for the institution  of legal proceedings against
               certain organs of state in respectof the recoveryof debts;
             * different periods of prescription in respect of such debts;
         AND RECOGNISING THAT-
             * the Prescription Act, 1969 (Act No. 68 of 1969), being the cornerstone of
               the laws regulating the extinctionof debts by prescription, consolidated
               and amended the laws relating to prescription;
             * some of the provisions existing laws which provide different periods
                                      of                            for
               of prescriptioninrespect    of certaindebtsareinconsistentwiththe
               periods of prescription prescribed by the Prescription Act,1969;

         AND BEARING IN MIND THAT-
             * SouthAfricahas moved fromaparliamentarysovereignstatetoa
               democratic constitutional sovereign state;
             * the Bill of Rights is the cornerstoneof democracy in South Africa and that
                                                             fulfil
               the State must respect, protect, promote and the rights in the of  Bill
               Rights;
             * section 34 of the Constitution provides that everyone has the right to have
                                          be
               any dispute that canresolved bythe applicationof law decided in a fair
               public hearing before a court  or, where appropriate, another independent
               and impartial tribunal or forum;
             * theright of accessto courtsmay be limitedtotheextentthatthe
               limitation is reasonable and justifiable in an open and democraticsociety
               based on human dignity, equality and freedom    as contemplated in section
               36 of the Constitution:

                                                                             of
         AND RECOGNISING the need to harmonise and create uniformity in respect
         the provisionsof existing laws which provide for-
       4           No. 24112                            GOVERNMENT GAZETTE, 28 NOVEMBER 2002
       ~      ~~          ~~




       Act No. 40,2002            INSTITUTION OF LEGAL PROCEEDINGS AGAINST
                                       CERTAIN ORGANS OF STATE ACT, 2002

                    *    different notice periods for the institution of legal proceedings against
                         certain organs of state for the recovery of a debt, by substituting those
                         notice periodswith a uniform notice period which apply in respect
                                                                            will                of
                                                                                    of
                         the institutionof legal proceedings against certain organs state for the
                         recovery of a debt;
                     *   different periods of prescription, by making the provisions Chapter 1 1
                                                                                     of          1
                         of the Prescription Act, 1969; applicable to all debts;

       AND RECOGNISING theneed to provide for transitional arrangements to ensure
   .   a smooth transition between the various existing statutory provisions regulating
                                        of legal proceedings against certain organs
       notice periods for the institution                                             of state
                  of            of
       in respect the recovery debts and the periods       of prescription of such debts, and
       the provisionsof this Act;

       AND BEARING IN MIND the limited need, for legal or practical purposes, to
                                of
       retain certain provisions existing laws which providefor-
              * notice periods that differ from the envisaged uniform notice period;
              * periods of prescriptionthatdifferfromtheperiods         of prescription
                prescribed by Chapter I11 of the PrescriptionAct, 1969,



           B       E IT THEREFORE ENACTED bythe Parliament of theRepublic of South Africa,
                     as follows:-

           Definitions

       1. (1) In this Act, unless the context indicates otherwise-
           (i) “creditor” means a person who intends to institute legal proceedings against 5
                anorganof state for therecoveryofa           debtor who has instituted such
                proceedings, and includes such person’s tutor or curator if such person is a
                minor or mentally ill or under curatorship, as the case may be;
          (ii) “Constitution” means the Constitution of the Republic of South Africa, 1996
No.      1996);(Act         108 of                                                               10
         (iii) “debt” means any debt arising from any cause of action-
                fa) which arises from delictual, contractual or any other liability, including a
                      cause of action which relates to or arises from any-
                       (i) act performed under or in terms of any law; or
                      (ii) omission to do anything which should have been done under or in 15
                           terms of any law; and
                ( b ) for which an organ of state is liable for payment of damages,
                whether such debt became due before or afterthe fixed date;
         (iv) “fixed date” means the date of commencement of this Act;
                “national department”
          (v) means-                                                                             20
                ( a ) a department mentioned in the first column of Schedule 1 to the Public
                      ServiceAct,1994(Proclamation         No. 103 of 1994),butexcludes        a
                      provincial administration; or
                ( 6 ) an organisational component mentioned in the first column of Schedule
    25                3 to that Act:
         (vi) “notice” means a notice contemplated in section 3( l)(a);
        (vii) “organof state” means-
                      any national or provincial department;
                      a municipality contemplated in section 151 of the Constitution;
                      any functionary or institution exercising a power     or performing    a   30
                      function in terms of theConstitution, or a provincialconstitution referred
                      to in section 142 of the Constitution;
                      the South AfricanMaritime SafetyAuthority established by section 2 of
                      the South African Maritime Safety Authority Act, 1998 (Act No. 5 of
                      1998):                                                                     35
                      The SouthAfricanNational Roads AgencyLimited contemplated in
                      section 3 of The South African National Roads Agency Limited and
                      National Roads Act, 1998 (Act No. 7 of 1998); and
                      any person for whose debt an organ ofstate contemplatedin paragraphs
                      (a) to ( e ) is liable;                                                    40
     6    No. 24112                               GOVERNMENT GAZETTE, 28 NOVEMBER 2002

     Act No. 40, 2002     INSTITUTION OF LEGAL
                                             PROCEEDINGS AGAINST
                               CERTAIN ORGANS OF STATE ACT, 2002

       (viii) “provincial department” means-
               ( a ) a provincial administration mentioned in the first column of Schedule 1
                     to the Public Service Act, 1994 (Proclamation No. 103 of 1994); or
               ( b ) a departmentwithin a provincial administration and mentioned in the
                column
                     first        of Schedule 2 to that Act.                                    5
       (2) This Act does not apply to any debt-
          (a) which has been extinguished by prescription before the fixed date; or
          (b) which has not been extinguished by prescription before the fixed date and in
               respect of which any legal proceedings were instituted before the fixed date.
       (3) Anylegalproceedingsreferredtoin         subsection (2)(b) must be continued and 10
     concluded as if this Act had not been passed.
       (4) For purposes of this Act, legalproceedings are instituted by service of any process,
     excluding a notice, on an organ of state in which a creditor claims payment of a debt.

                                              Part 1

     Prescription of debts, and amendment repeal
                                              or                  of laws transitional
                                                                        and                        15
     arrangements relating to prescription of debts

        2. (1) The laws referred to in the Schedule are, as from the fixed date, amended or
     repealed to the extent set out in the third column of the Schedule.
        ( 2 ) Subject to section 3 and subsections (3) and (4), a debt which became due-
            ( a ) before the fixed date, which has not been extinguished by prescription and in    20
                  respect of which legal proceedings were not instituted before that date; or
            (b) after thefixeddate,
     will be extinguished by prescription as contemplated in Chapter I11 of the Prescription
     Act, 1969 (Act No. 68 of 1969), read with the provisions of that Act relating thereto.
        (3) Subject to subsection (4), any period of prescription which was applicable to any      25
     debt referred to in subsection (2)(a), before the fixed date, will no longer be applicable
         date. fixed
     to such debt after the                                                         .  .
        (4) (a) The expired portion of any period of prescriptionapplicable to a debt referred
     to in subsection (2)(a), must be deducted from the said period of prescription
     contemplated in Chapter III of the Prescription Act, 1969, read with the provisions of        30
     that Act relating thereto, and the balance of the period of prescription so arrived at will
     constitute the new unexpired portion of prescription for such debt, applicable as from
     the fixed date.
        (b) If the unexpired portion of the period of prescription of a debt referred to in
     paragraph ( a ) will be completed within 12 months after the fixed date, that period of       35
     prescription must only be regarded ashaving been completed 12 months after the fixed
     date.

                                              Part 2

     Notice of intended legal proceedings to be given to organ of state

       3. (1) No legal proceedings for the recovery of a debt may be instituted against an 40
     organ of state unless-
           (a) the creditor has given the organ ofstate in question notice in writing of his or
                 her or its intention to institute the legal proceedings in question; or
           (b) the organ of state in question has consented in writing to the institution of that
s-               legal                                                                            45
                  (i) withoutsuchnotice;or
                 (ii) upon receipt of a notice which does not comply with all the requirements
                       set out in subsection ( 2 ) .
       ( 2 ) A notice must-
           ( a ) within six months from the date on which the debt became due, be served on 50
                 the organ of state in accordance with section 4( 1); and
           ( b ) brieflyset out-
8    No. 24112                                GOVERNMENT GAZETTE, NOVEMBER 2002
                                                                 28

Act No. 40,2002      INSTITUTION OF LEGAL PROCEEDINGS AGAINST
                          CERTAIN ORGANS OF STATE ACT, 2002

              (i) the facts giving rise to the debt; and
             (ii) such particulars of such debtas are within the knowledgeof the creditor.
   (3) For purposes of subsection (2)(u)-
       ( a ) a debt may not be regarded as being due until the creditor has knowledge of
             the identity of the organ of state and of the facts giving rise tothe debt, but a 5
             creditor must be regarded having acquired such knowledgeas soon as he or
                                        as
             she or it could haveacquired itby exercising reasonable care, unless the organ
             of state wilfully prevented him or her or it from acquiring such knowledge;
             and
       ( b ) a debt referred to in section 2(2)(a),must be regarded as having become due 10
             on the fixed date.
   (4) (a) If an organ of state relies on a creditor’s failure to serve a notice in terms of
subsection (2)(a), the creditor mayapply to a court having jurisdiction forcondonation
of such failure.
   (b) The court may grant an application referred to in paragraph (a) if it is satisfied 15
that-
        (i) the debt has not been extinguished by prescription;
       (ii) good cause exists for the failure by the creditor; and
      (iii) the organ of state was not unreasonably prejudiced by the failure.
   (c) If an application is granted in  terms of paragraph (b),the court may grant leave to 20
institute the legal proceedings in question, on such conditions regarding notice to the
organ of state as the court may deem appropriate.

Service of notice

   4. (1) A notice must be served’on an organ of state by delivering it by hand or by
sending it by certified mail or, subject to subsection (2),by sending it by electronic mail     25
or by transmitting it by facsimile, inthe case where the organ of state is-
           a nationalor provincial department mentioned in the first column of Schedule
           1, 2 or 3 to the Public Service Act, 1994 (Proclamation No. 103 of 1994), to
           the officer who is the incumbent of the post bearing the designation mentioned
           in the second column of the said Schedule 1 , 2 or 3 opposite the name the  of       30
           relevant national or provincial department;
           a municipality, to the municipal manager appointed in terms of section 82 of
           theLocalGovernment:         Municipal Structures Act, 1998 (Act No. 117of
           1998):
           a functionaq or institution referred to in paragraph      (c) of the definition of   35
           “organ of state”, to the chairperson, head, chief executive officer, or
           equivalent officer, of that functionary or institution, or where such functionary
           is a natural person, to that natural person;
           the South AfricanMaritime Safety Authority, to the chief executive officer of
           thatAuthorityappointed under section 22 of the South African Maritime                40
           Safety .4uthority Act, 1998 (Act No. 5 of 1998);
           The South African National Roads Agency Limited, to the chief executive
           officerofthatAgency        appointed under section 19 of The South African
           National Roads Agency Limited and National Roads Act, 1998 (Act No. 7 of
           1998): or                                                                            45
           a person referred to in paragraph fJ of the definition of “organ of state”, to
                                                ’
           that Derson.
   (2) If a nohce hasbeen sent by electronic mail or transmitted by facsimile as
contemplated in subsection (l), the creditor must-
      (a) take all reasonable steps to ensure that the notice has been received by the          50
           officer or person to whom it was so sent or transmitted; and
      (b) withinsevendays        after the date upon whichthat notice was so sent or
           transmitted, deliver by hand or send by certified mail a certified copy of that
           notice to the relevant officer or person referred to in subsection (l), which
           must be accompanied by an affidavit by creditor or the person who sent or
                                                      the                                       55
           transmitted the notice-
            (i) indicating the date on which and the time at which, and the electronic
                 mail address or facsimile number to which, the notice was so sent or
                 transmitted;
10    No. 24112                              GOVERNMENT GAZETTE, 28 NOVEMBER 2002

Act No. 40,2002      INSTITUTION OF LEGAL PROCEEDINGS AGAINST
                          CERTAIN ORGANS OF STATE ACT, 2002

           (ii) containing any proof that it was sent or transmitted;
          (iii) setting out the steps taken in terms of paragraph (a); and
          (iv) indicating whether confirmation of the receipt of the notice has been
                obtained and, if applicable, the name of the officer or person who has
                given that confirmation.                                                      5

Service of process

   5. (1) ( a ) Any process by which any legal proceedings contemplated in section 3( 1)
are instituted must be served in the manner prescribed by the rules of the court in
question for the service of process.
   (b)Despite paragraph (a), any process by which any legal proceedings contemplated          10
in section 3( 1) are instituted and in which the-
       (i) Minister for Intelligence is the  defendant or respondent, may be served on the
            Director-General: National Intelligence Agency or theDirector-General:
            South African Secret Service, as the case may be;
      (ii) Minister for Safety and Security isthe defendant or respondent, may be served      15
            on-
            (aa) the National Commissioner of the South African PoliceService as
                  defined in section 1 of the South African Police ServiceAct, 1995 (Act
                  No. 68 of 1995); or
            (bb) the Provincial Commissioner ofthe South African Police Service as            20
                                                                              ,1995, of the
                  defined in section 1 of the South African Police Service Act,
                  province in which the cause of action arose; or
     (iii) Minister of Correctional Services is the defendant or respondent, maybe
            served on-
            (aa) the Commissionerof Correctional Services as defined in section 1 of the      25
                  Correctional Services Act, 1998 (ActNo. 111 of 1998); or
            (bb) the Provincial Commissioner of Correctional Services as defined in
                  section 1 of the Correctional ServicesAct, 1998, of the province which
                                                                                  in
                  the cause of action arose.
   (2) No process referred to in subsection (1) may be served as contemplated in that         30
                                                           the
subsection before the expiry of a period of 30 days after notice, where applicable,     has
been served on the organ of state in terms of section 3(2)(a).
   (3) If any process referred to in subsection (1) has been served as contemplated in that
subsection before the expiry of the period referred to in subsection (2), such process
must be regarded as having been served on the first day after the expiry of the said          35
period.

Short title

  6. This is the Institution of Legal Proceedings against certain Organs of State Act,
2002.




                                                                      .   .
12   No. 24112                                     GAZETTE,
                                               GOVERNMENT                       28 NOVEMBER 2002

Act NO.40.2002   '.    MSTITUTION OF LEGAL PROCEEDINGSAGAINST
                           CERTAIN ORGANS OF STATE ACT, 2002

                                      SCHEDULE

                      (Laws amendedor repealed by section 2(1))

 Vo. and year of law            ihort title                      Cxtent of amendment or
                                                                 epeal
                                                                 ~         ~~




 k t No. 38 of 1927             3lack Administration Act,        'he repeal of section 32A.
                                927

 k t No. 57 of 1951             vlerchant Shipping Act, 1951         . The repeal of section 343.
                                                                 !. The amendment of section
                                                                 1 4 4 by the deletion of subsec-
                                                                 ion (4).

 4ct No. 44 of 1957             Iefence Act, 1957                'he repeal of section 113.

 4ct No. 94 of 1970             imitation of Legal Proceed-      l e repeal of the whole.
                                ngs (Provincial and Local
                                luthorities) Act, 1970

 4ct No. 18 of 1973             blental Health Act, 1973         The amendment of section 68
                                                                 'y the deletion of subsection
                                                                 4).

 4ct No. 90 of 1979             !ducation and Training Act,      The repeal of section 42A.
                                I979

 4ct No. 70 of 1988             :ducation Affairs Act (House     The repeal of section 108.
                                If Assembly), 1988
                                                     ~~     ~~




 4ct No. 122 of 1992            h d i t Arrangements Act,        The repeal of section 52.
                                1992

 4ct No. 38 of 1994             .ntelligence Services Act,       The repeal of section 26.
                                I994

 Proclamation No. 103 of 1994   'ublic Service Act, 1994         The repeal of section 39.

 4ct No. 68 of 1995             south African Police Service     1.   The repeal of section 57.
                                k t , 1995                       !. The amendment of section
                                                                  1
                                                                 4-
                                                                 a ) by the substitution for
                                                                       subsection (1) of the fol-
                                                                       lowing subsection:
                                                                          "( 1) Any legal pro-
                                                                       ceedings against a mu-
                                                                       nicipal police service or
                                                                       member of a municipal
                                                                       police service [in respect
                                                                       of any alleged act per-
                                                                       formed under or in
                                                                       terms of this Act or any
                                                                       other law, or an alleged
                                                                       failure to do anything
                                                                       which should have been
                                                                       done in termsof this Act
                                                                       or any other law]
                                                                       recovery of a debt as de-
                                                                    fined in the Institution of
                                                                    Legal Proceedings against
                                                                    certain Organs of State
                                                                    Act, 2002, shall be
                                                                    instituted against the mu-
                                                                    nicipal council in ques-
                                                                    tion."; and
                                                                 b) by the deletion of subsec-
                                                                    tion (2).
14    No. 24112                                  GOVERNMENT GAZE’ITE, 28 NOVEMBER 2002

Act No. 40,2002        INSTITUTION OF LEGAL PROCEEDINGS AGAINST
                           CERTAIN ORGANS OF STATE ACT, 2002

 40. and year of law
                               I                                Sxtent of amendment or
                                                                *epeal
 k t No. 7 of 1998                 The South African National   The amendment of section
                                   Roads Agency Limited and     i9-
                                   National Roads Act, 1998     a) by the deletion of subsec-
                                                                    tions (1) and (2); and
                                                                 b) by the substitution for
                                                                    subsection (3) of the fol-
                                                                    lowing subsection:
                                                                       “(3) Neither the
                                                                    Agency nor [any person
                                                                    mentioned in subsection
                                                                    (1)@)I=
                                                                    (a) any of the members
                                                                        of the Board;
                                                                    (b) the Chief Executive
                                                                        Officer;
                                                                    (c) any of the other em-
                                                                        ployees of the Agency
                                                                        acting in the perfor-
                                                                        mance of their duties;
                                                                    (d) any person acting on
                                                                        behalf of the Agency
                                                                        on the authority of the
                                                                        Board; or
                                                                    - any person who oper-
                                                                    (e)
                                                                        ates or has con-
                                                                        structed a national
                                                                        road,
                                                                    will be liable for any
                                                                    damage or loss suffered
                                                                    by any person through the
                                                                    use of any part of the na-
                                                                    tional road other than the
                                                                    roadway or as a result of
                                                                    the closure or deviation o f
                                                                    a national road under this
                                                                    Act.”.

 k t No. 111of 1998                Zorrectional Services Act,   The repeal of section 130.
                                   I998

 4ct No. 32 of 2000                ,oca1 Government: Municipal The amendment of section
                                   Systems Act, 2000           109 by the deletion of subsec-
                                                               tion (1).




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